Info about state or federal regulatory proceedings

Dental Board Adopts Pandemic Emergency Rule Amendment

By Jeanine Lehman, Attorney at Law

The Texas State Board of Dental Examiners held an emergency board meeting on the evening of August 24, 2020 to discuss and take action on an amendment to emergency board rule 108.7(16) concerning the standards for safe practice during the COVID-19 disaster.  In response to Texas Governor Abbott’s Executive Order GA 19, that rule was adopted earlier in the pandemic to allow dental practices to re-open.  The board meeting was held via Zoom, broadcast on a YouTube channel – demonstrating the hard work and resiliency of the dental board and dental community during this pandemic.

The dental board unanimously adopted three changes to the emergency board rule.

  • Dental Health Care Personnel (DHCP) may resume the use of ultrasonic devices for hygiene services. The language in the rule requiring DHCP to use only hand instruments and low speed polishing tools for hygiene services was deleted.
  • DHCP are no longer required to complete the full treatment of one patient before leaving the treatment area and going on to another patient.
  • DHCP are required to remove PPE before returning home, but are no longer required to change from scrubs to personal clothing.

The amendment to emergency board rule 108.7(16) became effective on August 25, 2020 after being reviewed by the Texas Governor’s office.  The rule is available on the dental board’s website at and in the September 4, 2020 issue of the Texas Register.  The rule will be in effect for 120 days unless changed by the dental board or unless the COVID-19 emergency disaster declaration of Governor Abbott is terminated.

During the meeting, board members made several observations including that the dental profession is doing a good job, that there have been no dental cluster outbreaks of COVID-19, that dentists must be mindful of what infection control is in place for practices, and that dentists need to look at board rules and set standards for every office.

In addition to the specific dental board guidelines for safe practice during the COVID-19 disaster in the emergency rule, the emergency rule incorporates by reference the Centers for Disease Control (CDC) Guidelines.  This is a changing area, so dentists will want to review the emergency rule as amended and the CDC guidelines and to look frequently for new developments in board rules and CDC guidelines.

During the August 24, 2020 meeting, the board also unanimously approved the appointment of attorney Casey Nichols as the new dental board Executive Director effective September 1, 2020.  Ms. Nichols was formerly the General Counsel of the dental board.

Jeanine Lehman is an Austin, Texas dental, health and business law attorney with a statewide practice – She can be reached at (512) 918-3435 or © Jeanine Lehman 2020. This article is not legal advice.


Rehiring Your Employees During the Pandemic

Rehiring Your Employees During the Pandemic

By Jeanine Lehman, Attorney at Law

During the pandemic, dentists face daunting tasks for reopening their practices and continuing operations, including obtaining adequate personal protective equipment, putting safety protocols in place, addressing COVID-19 in the workplace, and navigating the ins and outs of financial options, including the Paycheck Protection Program. One of the most difficult tasks for some practices is rehiring employees, who may receive more money on unemployment than for working.

CARES Act Federal Payment. Under the CARES Act, for pandemic unemployment, the federal government provides an extra $600 of weekly benefits. This is in addition to State of Texas unemployment benefits. This extra amount is last payable the week of July 25, 2020, unless extended. With the extra $600, many unemployed individuals receive more on unemployment than working. For example, a person, who had been working 40 hours a week at $16/hour, receives $933/week on unemployment vs. $640/week from working. 

Rehire Offer. The offer to rehire an employee should be in at least two written formats. For example, by letter, email, and text, as well in person or by phone. The offer should include all the terms, including rate of pay, location, job duties, and schedule. A written notice of how the practice is providing a safe working environment should also be provided. Records should be kept of the two written forms of the offer and the safe working environment notice.

Voluntary Incentives. A dental practice may voluntarily offer incentives to encourage employees to come back to work – for example, raises, re-employment bonuses, training, scheduling changes, or other benefits.

Refusal of Rehire. The Texas Workforce Commission (TWC) on its website states that “If you offered any of your employees a chance to return to work and they refused, TWC needs to know. Please report each individual who refused to return to work on our online Employee Work Refusal documentation.” Here is the link:  A copy of the completed online Employee Work Refusal form should be saved via printing or screenshot. If a rehire offer for a suitable position is refused and there is not an exception to rehire, the employee will most probably become ineligible for unemployment benefits. 

Exceptions to Rehiring. On June 16, 2020, the TWC provided guidance to unemployment claimants concerning continued eligibility for unemployment benefits if they refuse rehire. While each case is evaluated by the TWC on an individual basis, because of the COVID-19 emergency, the following are reasons benefits would be granted if the individual refused suitable work:

  • People 65 years or older, and/or people with medical issues, like heart disease, diabetes, cancer, or a weakened immune system, or who are at a higher risk for getting very sick from COVID-19. (Source: DSHS website)
  • Household member at high risk – People 65 years or older or who are at a higher risk of getting very sick from COVID-19 (source DSHS website).
  • Diagnosed with COVID – the individual has tested positive for COVID-19 by a source authorized by the State of Texas and is not recovered.
  • Family member with COVID – anybody in the household has tested positive for COVID-19 by a source authorized by the State of Texas and has not recovered, and 14 days have not yet passed.
  • Quarantined – individual is currently in 14-day quarantine due to close contact exposure to COVID-19.
  • Child care – Child’s school or daycare is closed, and no reasonable alternatives are available.

Work Search Requirement Reinstatement. Early in the pandemic, the TWC waived the work search requirement for unemployment benefits. On June 16, 2020, the TWC announced that starting July 6, 2020, the work search requirement will be reinstated. This means that unemployment claimants will need to engage in specified amounts of work searches and document the same. The goal is to find suitable employment and to return to work. With late June’s surge in COVID-19 cases and hospitalizations, the reinstatement of the work search requirement may be reconsidered by the TWC.

Changing Requirements. During the pandemic and its aftermath, considerations for employment and operating a dental practice will be subject to changing laws, orders, rules, and opinions. Therefore, ongoing vigilance and consultation with a knowledgeable attorney concerning changes will be critical.

Jeanine Lehman is an Austin, Texas dental, health and business law attorney with a statewide practice – She can be reached at (512) 918-3435 or © Jeanine Lehman 2020. This article is not legal advice.


Reopening Your Dental Office During the Pandemic

By Jeanine Lehman, Attorney at Law

An eternity seems to have passed since the City of Austin cancelled the SXSW festival due to COVID-19 in early March. Austin was spared the influx of over 400,000 visitors from around the world and a possible fate akin to New Orleans. That said, dental practices have suffered greatly due to their closure pursuant to the Governor’s Executive Orders GA-09 and GA-15, which limited health care providers to certain emergency services – to preserve personal protective equipment (PPE) for frontline healthcare workers fighting COVID-19. 

Reopening. On April 27, 2020, Governor Abbott announced that effective May 1, 2020, dentists may reopen their practices per Executive Order GA-19, which allows dentists to no longer be limited to emergency services. Dentists must comply with Texas State Board of Dental Examiners (TSBDE) emergency rule 108.7(16) which requires compliance with the rule’s and CDC guidelines. These include having COVID-19 procedures, screening of dental health care personnel (DHCP), as well as patient pre-appointment screening, in-office screening, and post appointment instruction, use of standard precautions, transmission-based precautions (including N-95 respirator masks, KN-95 masks, or their substantial equivalent for procedures likely to involve aerosols), and emphasis on proper use of personal protective equipment and reduction of aerosol production. An example is that for hygiene services, only hand instruments and low-speed polishing tools may be used. The guidelines also have office considerations and many more requirements. The rule is available on the TSBDE website. The Governor also provided a manual with minimum health protocol checklists for employers, businesses and individuals, which should be used, at:   Patients and others should be directed to wear face coverings while not in the dental chair. Dental practices should follow applicable guidelines, including TSBDE, CDC, OSHA, public health authorities, and other governmental entities, and make reference to ADA and TDA resources. The Texas Dental Association’s “Guidelines for Reopening Dental Offices Safely During the COVID-19 Pandemic” is helpful and includes resource references. 

Employees. When Order GA-09 was issued in March, many practices fired or furloughed some or all of their employees, who then filed for unemployment. To bring back fired employees, they  need to be rehired and customary new hire paperwork is required. Hopefully, fired and furloughed employees will want to come back to work and realize there is a limit to unemployment benefits. That said, many employees will receive more money from unemployment benefits than from working at their past wage levels, due to added pandemic federal unemployment benefits of $600/week. To estimate an employee’s unemployment benefits, $600/week is added to the results from the Texas Workforce Commission’s benefits calculator: 

COVID-19 in the Office. A COVID-19 positive patient, visitor, or team member may be present in the dental office. Such person may be asymptomatic but spreading the virus. Therefore, the practice needs to have a plan in place for what to do if notified by a patient, team member or visitor of COVID-19 infection, including compliance with the requirements of State and local public health authorities. For eligible employees, the practice also needs to comply with the Families First Coronavirus Response Act administered by the U.S. Department of Labor, including for paid sick leave and enhanced family medical leave requirements. A poster concerning employee rights is required.

PPP Loans. Practices receiving Paycheck Protection Program loans should carefully track and document allowable expenses that apply to loan forgiveness. To avoid or limit the reduction in loan forgiveness, they need to be aware of and minimize the reduction in the number of full time equivalent employees and employee compensation.

Costs & Adjustments. Dental practices will incur significant costs, including for enhanced PPE, office improvements, and probable reduction in patient capacity. For example, a hygienist doing hand scaling will see fewer patients in a day. The American Dental Association has issued a statement on third party payer reimbursement for costs for increased standards for PPE. Dentists should also carefully track and document their loss of revenue and increased expenses caused by the pandemic. Those data will be helpful if they choose to sell their practices.

Changing Requirements. The reopening of dental practices will be subject to changing orders, rules, laws, and opinions. Therefore, ongoing vigilance and consultation with a knowledgeable attorney concerning changes will be critical.

Jeanine Lehman is an Austin, Texas dental, health and business law attorney with a statewide practice – She can be reached at (512) 918-3435 or © Jeanine Lehman 2020. This article is not legal advice.



Do You Pay Your Team Members on a Salary Basis? DOL is Changing the Rules!


For the first time in over a decade, the U.S. Department of Labor has issued a final ruling on an increase to the salary threshold for exempt employees.  Starting on January 1, 2020, employees will need to be paid a minimum of $684 per week or $35,568 per year to meet the salary qualification for exempt status.  This is an increase from the current exempt threshold of $455 per week or $23,660 per year.

What Does This Mean for Dental Employers?

If you are paying any of your employees on a salary basis you need to know whether you are paying employees as “salary exempt” or “salary non-exempt” – and if you are in compliance with federal rules.

To understand this, you need to separate the payment method from the classification.  Salary and hourly are payment methods. Exempt and non-exempt are employee classifications.  More specifically, the latter categorizes employees by determining whether they are exempt from the Fair Labor Standards Act requiring non-exempt employees to be paid minimum wage and overtime pay.  You are not required to pay overtime to exempt employees so long as they are paid the same amount of salary each week. 

Exempt vs. Non-Exempt Employees

Most employees in a dental practice are non-exempt because they do not meet the two standards for exemption.  To consider an employee exempt from FLSA, they must be paid at least the minimum salary threshold and meet a duties test in at least one of the three categories: executive, administrative, or professional. 

You know the new salary threshold but let me simplify the duties tests.  In most cases, it’s likely the only two positions in your practice that meet qualifications for exempt status are your Dental Associate (professional exemption) and your Practice Administrator (executive exemption).  The PA or Office Manager can be exempt so long as they are directly managing at least two employees with the authority to hire, fire, or discipline those they supervise. The Office Manager who just makes the schedule and deals with patient complaints while still taking on the regular front desk administrative duties would not qualify as exempt. 

All other employees should be considered non-exempt.  In some cases, there can be exceptions made for a hygienist who has completed four years of professional study.  However, their education must be obtained from an accredited college or university that was approved by the American Dental Association’s Commission on Accreditation of Dental and Dental Auxiliary Educational Programs at the time of study.  If your hygienist consistently works less than 40 hours per week, it’s likely not worth the risk of classifying them as exempt if they do not meet the qualifications. 

Pro tip – you won’t have any problems classifying an employee who could be exempt as non-exempt; however, you could have an expensive problem if you classify an employee who should be non-exempt as exempt.  The safer course is to consider the rest of your team as non-exempt employees, require them to track their time, and pay the overtime rate (1.5x regular hourly rate) for any hours worked over 40 in a 1-week period. 

What If I Pay All My Employees A Salary?

Occasionally, an owner dentist will tell me they pay their entire team on a salary basis.  Either they heard it was a good idea for employee retention or they don’t want to deal with time sheets.  Regardless of the reason – or whether this is a good idea, which is an entirely different article – there needs to be an understanding of the regulations surrounding employee classification. 

You can have a “salary non-exempt” employee.  However, because this employee does not qualify for exempt status, you should require them to track their time and will need to pay the overtime rate for any hours worked over 40 in a 1-week period.  To calculate this rate, divide their weekly salary by 40, then multiply by the number of overtime hours worked and add to the base salary pay for the week overtime was earned.

It’s not as complicated as it seems.  Just be aware that if you have a truly exempt employee, you need to ensure they are paid the minimum salary threshold each week they work to avoid paying overtime.  If you are paying a set salary to non-exempt employees, regardless of how much the salary is each week, you need to have them track their time and are required to pay them overtime (or make sure they don’t work past 40 hours in any given week).  Stay compliant!

By Kara D. Kelley, SHRM-CP, Dental HR Consultant at Parkhurst Consulting CPA PC


Editor’s Corner January 2020

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Editor’s Corner November 2019

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Custodian of Dental Records Rule

By Jeanine Lehman, Attorney at Law

On February 22, 2019, the Texas State Board of Dental Examiners adopted a rule on custodians of dental records, as part of the Board’s existing rule 101.11 concerning handling of the practice of a dentist who is deceased or mentally incompetent.

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Scams: What a Tangled Web They Weave

By Jeanine Lehman, Attorney at Law

Dentists and their staff need to be wary of scams.  Here are a few to have on your radar.


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